*1 TEEM, FALL N. C.]
Spencer v. Railroad. RAILROAD. v.
SPENCER 6, 1904).
(Filed December Corporations Corporations—Acts 1. RAILROADS —Consolidation — 18S5-B6, chap. (Private) 1901, chap. 168—Acts chap. 168, (Private) certain railroads Acts Under to consolidate. authorized Corporations—Consolidation—Eminent Domain— 2. RAILROADS — Stockholders. corpora- authorizing
An the consolidation of certain railroad stockholders, allowing majority upon tions a vote of a taking for his stock lieu of stockholder actual value a company, is valid. stock the consolidated Corporations. 3. RAILROADS—Consolidation of assessing method for the value legislature provides
Where by persons who do not desire to take stock of stock owned thereof, prescribed company in the mode lieu a consolidated be followed. is exclusive and must Corporations—Laches—Equity. 4. RAILROADS — years bring an action to for two a stockholder fails
Where corporation, and mean- another annul consolidation with persons in the consoli- obtained interests while third grant equity company, the relief will not a court of dated demanded.
Douglas, J., dissenting. another Sea- against E. P. tbe
ActioN heard by and another, Air Line Eailway board Brown, Jr., at Term, 1904, II. February George Judge County. Court Wake Superior from a is an plaintiffs judgment This appeal by Term, 1904, October Supe- ore terms at. demurrer Ida T. plaintiff, Spen- of Wake County. rior Court feme owner of shares seven alleged she cer, THE IN SUPREME COURT'. Spencer v. Railroad. *2 defendant and Gaston Eailroad corporation, Ealeigh of Company, one hundred dollars par each; value that she stock in 1887 has acquired said the same and owned of institution of continuously this action; date said is represented that certificate No. 1644, bearing date of April 18, the defendant and That Gaston Eailroad Ealeigh an
Company created and under act of organized the Gen- of eral North Assembly 25 of the Acts of Carolina, chapter and 1835, since has that exei’cised day continuously corpo- rate powers until thereby conferred alleged merger said in what is known corporation as Air Line Eailway.
3. That and the said Eailroad Ealeigh Company, under and of certain acting assumed virtue alleged and powers attempted under granted General Assembly State of has endeavored to Virginia, merge and consolidate itself with certain other railroads under the corporate name the Seaboard Line has and Railway, become said other alleged holding corporation respect That corporations. such and con- subsidiary alleged merger solidation was and beyond is ultra vires and the corporate of said powers Ealeigh and Gaston Eailroad Company, and void in is invalid so far as concerned.' plaintiffs 4. That at a of the stockholders meeting Eal- said eigh Gaston Eailroad held of Eal- city 1901, of a a eigh May 20, pursuance copy notice, which is hereto attached of this a as part complaint, majority of said stockholders undertook take attempted such action as in the consolidation of would result said merger aforesaid; did corporation that said not warrant notice such said action; that at Ida said T. meeting Spencer, by her E» P. fact Spencer, attorney appeared protested be taken action to stock- against by majority said TEEM, FALL O.]
Spewoek filed a written protest against holders, thereupon of this is hereto part which attached copy action, several other that meeting meetings said complaint; prior which certain not present, had at were plaintiffs been held no which certain of which at proceedings they notice, had were cannot records had plaintiffs state, because State said within the are not limits kept thereto; able access been to obtain plaintiffs have action of was ultra vires said May 1901, meeting as to and illegal plaintiffs; invalid void after E. P. said himself and filing protest *3 behalf of Ida withdrew meet- T. from said said and was not and in the thereafter took no present part ing, proceedings. and That Gaston Eailroad Company, the said Ealeigh far
so are has since merger as plaintiffs concerned, alleged corporate its and consolidation and prеserved identity sepa- rate existence aas that since corporation, notwithstanding then it has constituted the so- nominally integral part Air called Seaboard Line and has not it Eailway, although since then exercised its and dis- separately corporate powers its that it has not meet- duties; held charged corporate any of its or of directors; stockholders its that it has not ings pub- lished of its disbursements; statements that any receipts and has it not declared but has any dividends, subordinated itself to the and control of officers directors management and of, the said Air Line Eailway, although, plaintiffs it has so to law done and in allege, contrary violation its corporate duties and obligations.
6. That to or prior after said immediately immediately stockholders’ meeting May the said 20, 1901, Ealeigh Gaston Eailroad Company, cеrtain officers and acting through of whom cannot agents, plaintiffs procure informa- definite attempted sell and sold tion, 1,828 shares THE IN SUPREME COURT.
Spence» v. Raiekoad. said Gaston Railroad which was held Raleigli Company its certain definite same treasury purposes; was not sold for such but was in violation of purposes, sold duties of said officers and plaintiffs; that it was sold to certain parties whose names can- plaintiffs but who were ascertain, interested directly organi- zation of the said Seaboard Line that was it Railway; sold secretly, without offered for being to the subscription stockholders of road, said including the plaintiffs, to the public, without to bid for opportunity bidders same; it was at sold no grossly inadequate price and account has ever been rendered sale respect pur- chase.
7. That under charter thereto of amendments said Gaston Railroad Raleigh and had it no acquire stock of nor to corporations, do any acts which attempted has do has done in con- nection that said merger consolidation; acts unknown in detail and in plaintiffs their entirety, will if ascertained be, possible, and disclosed this Court during progress action; that all of said acts which have doings in said resulted so-called con- merger *4 solidation have been ultra dero- vires, contrary law and in manifest gation inherent and and rights privileges T. Ida plaintiff as stockholder in said corpora- tion.
8. That if the said Raleigh and Gaston Railroad Company had maintained and its discharged duties as a cor separate created poration and under the laws existing Caro North have, said stock of the Ida T. lina, Spencer would in increased largely now valuе have would been valua ble asset of said but that plaintiff; Gas- said Raleigh ton Railroad having undertaken purchase stock of other corporations same operate as so-called ‘ Hi FAIL'TEEM, NO.] Spencer v. Railroad. issued an amount at bonds to baying- corporation,
bolding debts of tbe baying unknown assumed present plaintiff, having other endorsed or many corporations, guaranteed bonds of other the burden corporations, assumed having own all of which lines extending credit, railway it and done were ultra done, has which many things as vires plaintiff’s rights premises destructive in one of its stock has been stockholders, prevented said dividends the road have would receiving said otherwise earned. That if Railroad Com said Raleigh had been as a pany distinct operated separate corpora as it was as chartered, and it was intended tion, originally that it should stock be, plaintiff’s would produced her dividends few large during the past whereas, owing years, her illegal destructive mentioned, acts hereinbefore stock has no dividends whatsoever. produced her
9. That value of- plaintiff’s not measurable by its market any degree value, because has present none, nor its antecedent market value, pertinent That the effect of controversy. consolida- merger tion been has completely destroy existence of corporate said and Gaston so far Company, actors therein could effect destruction and to destroy value of completely the plaintiff’s com- said both stock, mercially intrinsically.
10. That the said and Gaston Railroad Company, or the thereof, officers if there be any, or the officers of the Line Railway, have either destroyed books, records and papers said Gaston Railroad Raleigh and or have them removed Company, beyond limits of the either of which acts is State, to law contrary deroga- tion of Ida T. premises Spencer, a stockholder in said corporation.
11. That the said corporation, said and Gaston Raleigh IN THE SUPREME COURT. V.
SPENCEK IÍAILKOAD. Railroad ceased to act tinder bas Company, pursuance and of its charter its and compliance corporate and duty laws North Carolina the two and years past last its 1901; since has forfeited charter May 20, thereby provisions of section 688 of Code of North under Carolina. demand
Wherefore, plaintiffs judgment: 1. That defendants the and Railroad Gaston Raleigh Air Line and Company Railway required disclose to this Court follows: When merger attempted mentiоned in went into this effect what its complaint what relation the Rail- terms; defendant Raleigh and road said what have Company merger; bore now bears to been the annual Ral- receipts disbursements said as a entity and Gaston eigh Company separate distinct from January separate capacity its corporate date; what been its annual net profits this 1, 1901, it has said what stock of other during period; companies or what other com- bonds acquired attempted acquire; it has or or en- panies purchased assumed guaranteed dorsed whom ; 1,828 stock; it sold of treasury said shares when, at what to what uses or price; purposes pro- sale of ceeds derived what said stock applied; were said, it has disbursements out funds Raleigh made Gaston Railroad effect such otherwise, to Company, or in or inсi- consolidation, connection merger therewith, who thereto; dental are the officers present corporate Gaston Railroad when and where said Company; their last annual stockholders held if and what of such were meeting, proceedings meeting, held. meeting 2. That and Gaston Railroad tire defendant under the direction required, Court, render of all accounting receipts disbursements *6 FALL TEEM, 1904. C.]
SpestceR v. Railroad. and dis- since this 1, 1901, separate to January date, tinct corporation. and consolidation of the said alleged That merger with corpora- Railroad Company into what is known as Seaboard Air
tions Railway Line vires ultra void declared plaintiffs. these That a Receiver Gas- appointed said ton Company. Railroad
At of 1899 Session 34) (chapter Legislature State and Carolina incorporated Petersburg Richmond, Railroad Company, by virtue Virginia corporation, said new should declared said act succeed rights, all Carolina Railroad etc., Virginia etc. of an Company, By provisions General 12, Rich- Assembly Virginia, approved January mond, Carolina Railroad Petersburg au- was Company petition in the thorized, upon filed Circuit Court of Rich- its etc. The mond, change name, said company railroad filed duly said petition its it be Court, praying per- its mitted “The change name Seaboard Line Rail- way Company/’ pursuant order petition said was duly made the name changing Court said corpora- tion in accordance with prayer said petition. Private
By Laws of 1901 chapter 168, of North Carolina, Seaboard Air Line Railway successor Company, Carolina Richmond, Petersburg was Company, empowered to this State all of the exercise etc., powers, vested in the Richmond, Carolina Railroad Petersburg and its under charter and amendments It thereto, etc. also that: “With provided approval two-thirds amount of stockholders annual or given at special * * * * * * it meeting may lease, use, operate, * * * or or purchase consolidate otherwise acquire
137-8 COUNT. THE IN SUPREME rail or any Company, Roanoke Railroad
tbe incorpo now hereafter company road transportation 'x‘ * * consoli from time time may etc., to- rated, * ** any other its capital stock, property date *7 may terms as such or company upon railroad transportation power being the respective companies, upon by be agreed or company railroad or granted any transportation hereby or under incorpоrated any now or hereafter by companies Carolina of North of the Assembly of the General State re stockholders in amount of its of a the approval majority at or for such at a. purpose, called given meeting spectively in per all of of represented the shares stock capital of con byor to make out such contracts carry son proxy dispo sale of or acquisition solidation or or other mode lease, Provision is terms setting etc. made forth the sition,” lease, sale, copy of such contracts etc., requiring be filed in office of the of State. Secretary agreement stockholder proviso: “Any statute contains following The or who from such consolidation within may sale any dissents Court thereafter by petition Superior sixty days apply State of which Warren this county County, stockholder was a resident at time ratifi dissenting value of cation his stock, act, determine be receive consolidated or shall entitled said purchas as thus value determined such ing transfer thereof shall corporation; new value if the either jury assessed trial same be by requested by be and if the owner of abe non-resident of party, said stock shall made this State Courts application may United States jurisdiction.” having notice was issued: “To Stockholders following
The Gaston Railroad-—-Notice is Raleigh that a hereby given of the stockholders of the meeting special general above-named will be at held company City office N. Raleigh, FALL TEEM, 1904. C.] V. SPENCEK SAILEOAD.
C., 20th o’clock A. day for the May, 1901, M., at into consideration purpose taking articles of agreement of consolidation of merger and railroad the following-named companies: Seaboard Line Eailway, the Raleigh Gaston Railroad Company (and corporations named), heretofore into entered directors com- respective said and at which a vote will panies, ballot meeting taken of said rejection the adoption agreement. order of the “By Directors:
“J. M. Sheewood, Secretary filed the following protest: “To the Stockholders Raleigh and in session at May Raleigh, 20, 1901, and
President and Secretary Company: *8 “Mrs. Ida T. whom notice was served Spencer, upon of of stockholders and Gaston meeting Raleigh Railroad the in on at A. Company M., to consider May 20th, Raleigh, of of articles consolidation agreement merger and of a number of The to-wit, Seaboard Air íailway companies, Line Rail- the Air Line Augusta way, Raleigh Railway Company, in others, appears by attorney meeting only to protest does against action, hereby con- protest against the sideration of said of agreement, the adoption same, ultra to and vires and being injurious in derogation her as a stockholder. R. P.
“Respectfully, ScpeNcee, Ida. T. “Attorney fact for said Pursuant notice the was stockholders meeting held in city the 1901. The Raleigh, O., May 20, chairman tire submitted proposed agreement merger consolidation which had been executed duly by the other cor also resolutions of copy certified the porations, the Board the; COUNT. SUPREME IN V. RAILROAD.
SPENCEB Railroad Company Gaston o'f of Directors the set filed the protest thereupon thereto. relation The unani was thereupon resolution following The herein. out “Resolved, etc., ballot: vote by a stock adopted mously of mer and adopt agreement do approve hereby they roads all naming between,” and consolidation ger etc.-— not necessary It is or consolidation. into merger entering is made controversy no the terms of the agreement, to set out as alleged executed duly contract thereto. regard rendered Honor hearing Ilis upon in the complaint. “In cause the move plaintiffs following judgment: the defendant compelling Court for an order within the Railway jurisdiction bring Air Line books Court records of this y permit plaintiffs inspect Compan same. dis- time the Court to
“At same defendants move ore tenus to the because complaint, the action and demur miss can action stated which plaintiffs maintain, no cause cannot be sustained. action pleadings provisions of “The Court is of that under opinion 1901, 27, the General Assembly, February ratified Acts and the other acts 1901, chapter pleaded Private only referred answer, remedy plaintiffs viz., sue for the value of chapter 168, .have given their at time interest thereon. consolidation, *9 “The defendants consented the plaintiffs having thereto, if or new within amended desired, thirty days file may, for the their complaint purpose recovering value the value assessed the manner stock, having pointed out in act. After such is filed will be com- complaint require petent production etc., such books, records, Gaston to show such Company, as tends value. FALL TERM, C.]
“If to file amended com- tbe shall plaintiffs elect not plaint recover the value of their then the Court ad- stock, action must that this defendants judges go be dismissed and recover from which costs,” day judgment without plaintiffs appealed. Busbee, & for the
Busbee plaintiff. Bell, Womack, & T. B. & Day Shepherd Shepherd Allen, for defendant. Murray after the case. attacks J., stating Connor, validity of of consolidation or merger whereby the contract a Company, together
number of other connect companies owning controlling part lines system, became Line ing which it will be consider several upon grounds convenient in which discussed in excellent the order they very are of her counsel. It conceded brief course that as his Honor Court and cause disposed Superior us motion dismiss as before demurrer ore upon upon tenus, made in the con with such every allegation complaint, as is struction thereof most must be plaintiff, favorable of course is taken true. This so purpose drawing therefrom. The cer conclusions legal plaintiff says tain ultra vires. This is acts the defendant a conclusion from the of law to drawn stated. It is also to facts noted no makes reference to several complaint that although the the General statutes enacted Assembly, being private acts do not under our unless referred come to and cognizance his Honor’s refers at one expressly least proven, judgment and us counsel them argument treated them, before us. The before that a careful being properly plaintiff says Laws to show chapter 168, analysis Private fails conferred the Seaboard Air Line authority *10 COURT. IN THE SUPREME
118 v. Railroad. with or consolidate, purchase merge Railway Company and Roanoke Rail the Seaboard other railroad than any extraor That the statute conferring road Company.’ clear railroad corporations should dinary power upon construction or doubt. Why explicit leaving nothing — named in should have been conferring that single corporation referred to in other companies general railroad power think, however, does not very clearly appear. terms We of the a fair and reasonable by interpretation language is included act the Gaston Company Railroad Air Line those with which the Seaboard among companies railroad or is “and any empowered consolidate, Company now or hereafter transportation incorporated by company In thereof.” laws United States or States any other to consolidate lan companies conferring power upon hereby guage comprehensive “power being grant equally — ed to railroad or company companies any transportation or under or acts of now hereafter incorporated Assembly Carolina,” of the State of North the General eta comes The Company certainly within classification. It would seem to that the follow unless otherwise must provisions act, expressed, all be construed as thus to' referring companies included the class to consolidate. is conferred upon power rendep other construction would con Any nugatory power The ferred. next insists that no can consolidation take unless so consolidate is con place power expressly ferred both This upon corporations. consolidating proposi tion sustained the authorities cited. reasons . therefor manifest. We think that such Cyc., conferred both power upon corporations. Chapter 168, confers section Line Rail expressly road “with approval two-thirds of its consolidate stockholders, etc., operate, amount lease, FALL TERM, N. C.]
SpeNoer As the seen, power with or otherwise we etc. acquire,” the and Gaston is conferred upon etc. contract of consolidation,
to into the enter the enable evident the to purpose Legislature The form consolidation, merger Seaboard Air Line to by Railway con- State
or a through the purchase system transportation The in South Carolina. with railroads Virginia necting in with that in Virginia, in this State, together legislation Line which expressly to the regard Company, in the Acts 34, 1899, preamble chapter referred be shows the Acts chapter 1901, purpose' several statutes. This ascertained, scope being in should be guided interpreting we principle by is to stated: statute construed thus be “Every statute is intended and the purpose Legisla- reference to its scope or it; ture usеd language ambiguous in enacting where is to a more one ba taken such admits of meaning, than carry sense will conform the the act out to- tire scope Black on of Laws, statute.” Interpretation purpose Endlich, 56
It that tire consolidate may is settled be conferred power 10 either in charter a act.- enabling by Cyc., general 289. The next that, contends assuming statute confers and Gaston Rail- power upon road can be only that such consolidate, power exercised consent unanimous That a dissent- stockholders. cannot be stockholder surrender ing his stock compelled in lieu thereof stock in another accept That is conferred unless such company. power upon stockholders amendment majority charter, thereto made before the of subscription stock- dissenting holder, Legislature would conferring power invalid between impairing obligation contract stockholders. This sustained proposition amply THE COUNT. IN SUPREME
Spences v. Railkoad. Court of the United authority. Supreme principle Meredith, v. S., Clearwater U. 25, discussing States com statute several permitting railroad consolidation “The to confer such panies, says: Legislature cannot without authority authority questioned, railroad corporations separately organized merge could their and consolidate interests. Uut in the author conferring never ity the intended Legislature compel dissenting *12 stockholder to transfer a his interest of the because majority stockholders to the consolidation. Even if consented Leg the islature had an manifested obvious to do act purpose so, the would been for would have it illegal the impaired оbliga * * * tion of a contract. When any person takes in a railroad he has into a corporation entered contract with the his company interest shall be to that the subject direction and control of the of proper authorities to corporation the the accomplish which object company organized. He does not that agree which improvement to he sub scribed be in should its changed purpose and character at the will and a pleasure of of the so that majority stockholders, and, new responsibilities new may be, hazards to added the original be undertaking. in may willing to embark He one enterprise unwilling engage another; assist to' line building short railway, averse his risking Turnpike money one line of transit.” having longer v. Bolts ., 88 2 L. 54, R. Ky., Railroad, A., v. 594; McCrary Co defendant Ind., The conceding law, this to that says the statute conferring power the several upon railroad companies consolidating, expressly provides pay ing stockholder full dissenting value his stock at time of consolidation. tire This provision can only sustained by invoking eminent domain and con stock for a demning use public by making compensation therefor. The plaintiff contends that at the date the char- TEEM, FALL C.] no (1835), ter of amend was reserved charters power corporations under the decisions Constitution State, and doctrine within of the this Court they protection come issued That all of the stock was case. Dartmovih College the Constitution of adoption 1868, prior that no statute general reserved. He also says such power was was in such consolidation. force in this authorizing State: It be noted, This contention correct. undoubtedly will Acts does not undertakе however, chapter 168, amend of the or do more than em- the charter company with the consolidate power majority the stockholders It is no imposes duty companies. enabling stockholders. It upon obligation that the act majority must be also, conceded, stockholders the relation to- does change exercise of its wards corporation. Legislature majority power confers stockholders the to consolidate with other constituent companies accept *13 in therefor such number of shares in new or consideration the consolidated as This be can may agreed upon. corporation be of with the consent the The only Legislature. Legis- done lature that such consolidation decided having promotive of had no com- welfare, the public recognized to power it in stockholder to the new cor- pel stock dissenting accept of exercise of poration. Therefore, in eminent right the domain it to of empowers the condemn when it stockholder can not ac- dissenting be otherwise This- distinct from quired. power entirely the power the charter. The re- amend of right eminent domain which sides in to be “The defined State, rightful authority which in exists control every those sovereignty regulate of a which to its citizens in com- public pertain nature and to mon, and control individual appropriate property IN THE SUPREME COURT.
122
Spewcer convenience safety, necessity, benefit public public 524; Const. Lewis Lim., demand.” Cooley may welfare 10 Am. This right Em. 1; Ency., Domain, Eng. and is State necessity is said to have in originated power from it. It is. a in part inherent and inseparable sovereignty Davis, v. State. Ib. Railroаd sovereign every power State When the incorporated C., into with a contract was Gaston Railroad entered which not be impaired. could the corporation, obligation did in the corporation State not respect property or in degree impair itself of or its shareholders divest domain. The its could Legislature eminent right of tire of a so divest itself power integrity essential Dix, S., Co. v. 47 U. Mr. Daniel State. Bridge Justice law declared, “No shall pass any says: State, this, con with contracts; yet impairing obligation it can not yielded, cession constantly justly disputed inheres neces there community political sovereign every promoting sarily duty protecting welfare of interests This community large. at acts of to be not only exerted duty highest are external government.; relations sovereignty interior re reach and likеwise they comprehend polity reference social regulated lations should with life, denomi whole This advantage society. power, tlie name eminent domain its imports, nated the State, is, all under the vested paramount private rights government, those last held in subordination to this power ** * must in' instance yield every exercise. proper A correct view moreover, of this matter demonstrate, must *14 of eminent domain nowise right the interferes contracts; the of the most inviolability sanctimonious for one consistent with possession is regard perfectly exercise 10 Am. and 1050. of the other.” Ency., Eng. FALL TEEM, C.]
SpeNcer v. “The has authorize consolidation Legislature power of railroad and other gwasi-public corporations, without unanimous consent of their when it makes stockholders, pro vision for for the appraising stock оf paying dissenting entirely stockholders. This is unaffected con stitutional prohibition against impairing obligation contracts and is based eminent sovereign power domain. Corporate shares, property, well to' subject the State for paramount necessities pro motion of interests.” public Noyes Rel., Intercorporate 51; Co., Black v. Canal 24 N. J. Eq., busy “In of restless brain of man age activity when the enterprise, itself in his is with time and exhausting struggle space, the two forces that most his oppose progress, taking private stock in such to advance corporations purposes indicated must above be regarded as it taking pub lic benefit. There be no can doubt that a railroad company their to extend road may empowered beyond point which was under if original compen built grant, proper sation stockholders who I provided it, may resist can see no difference in com whether principle, original a, in order to route pany secure under through manage one to take ment, individuals take authorized the lands or to individuals have in stock of an property existing In road. the first for the case, purpose establishing one kind through private, lands route, to-wit, property, of individuals are taken another case corporation, another shares kind of indi to-wit, stock property; viduals in an authorized to con existing company are * * * demned. both un applies same cases, rule less can property claim superior right protection. with all other This, under private rights, dominant held domain.” eminent In a able very opinion by Bige J., low, Lowell, it is Bridge Corp. said: Mass., *15 SUPREME COURT. IN THE
Spencer Kailroad. justice any.violation of recognized “Nor thus is the principle in tend any impair nor degree or sound does policy, It rests contracts. sanctity or infringe obligation and necessity para convenience basis that on the public ascer duly when which, mount obligation importance all minor con authority, sovereign tained declared by the a held, be in and interests must rights siderations and private extent, By grant a certain subordinate. measure the Leg individuals for public purpose one a franchise islature does not forever debar themselves giving re when new and privileges others paramount rights be necessary it may quired by public exigencies, although to take appro of such and privileges the exercise rights If were rule priate previously granted. franchise the increas rendered public improvements necessary by great 'and in the of civilization development wants society ing tire the arts, might prevented by legislative progress time, were wise their but grants expedient ob which the rendered outgrown necessities public solete. The rule of true well as only policy, law, must another more public purpose yield grant one and this can effected without urgent important, If subject. constitutional infringement such, is made suitable eases and adequate provision for the those Legislature compensation property whose no violation of there is faith public franchise acquired, charter private right. obligation original The created have in Ral We thereby history recognized.” Railroad illustration and Gaston eigh striking Justice .by principle clearly so stated operation condemna private property by take Bigelow. tion a railroad for the of constructing proceedings purpose this Court asserted, first enforced by recognized J., v. 19 N. C. wrote Davis, C., Ruffin, NALL TERM, N. C.] v. able and exhaustive
a unanimous Court an opinion, tracing *16 the asserted power giving application source and the has defendant in this case. This been by opinion always the in law this this Court as the in settling and approved cited or would' necessity State. The same convenience public and con land of the citizen to open the justified taking have was to meet needs the in public struct highway same the needs as they for land invoked taking meet needs in 1836 construct a advancing railroad. The existed and travel conditions in to transportation and changed regard to demand formation Legislature is deemed line interstate in system trunk or railroad great of consolida If Seaboard Air Line instead Company had, con and Gaston Railroad Company, ting from structed a track Ridgeway line separate Raleigh, necessary the route on therefor land could foot every for that We can no reason been condemned purpose. see of the same inherent sovereign power, exercise why, to con empower corporation the Legislature may Whether the this re demn stock. power plaintiff’s 'our wisely beyond province conferred exercised is spect for decision of This say. question Legislature. examined with all the authorities cited by care We have In cases where counsel. consoli those plaintiff’s invalid, acts are declared no is made dating provision for the the value and We stock. assessing paying dissenting no that the condemnation of holding find difficulty more J., stock is for a than did C. Ruffin, plaintiff’s public use associates that railroad origi his learned finding for such Clark and on Pri use. constructed Marshall nally C., Railroad, 83 N. 1051; Railroad v. 489. We Corp., vate that the to con had opinion Legislature to condemn fer on the dissenting a reasonable interpretation and that the stat- stock, THE COURT'. IN SUPREME [R37 v. mode no valid to the find objection clone so. it lias We ute it is ex the value of stock; prescribed ascertaining be the value so must be that paid assessed provided pressly mode It seem fore stock is transferred. would v. exclusive must pursued. prescribed It McCaskill, only 94 N. seems us be the C., rea of trial is free mode remedy. practicable case is another view of this pre objection. There sonable brief which fatal to plain think sented the defendant’s we The Board of Directors tiff’s action. April met 29, 1901,
Gaston Railroad would the consolidation adopted a resolution reciting *17 interests of promote facilitate business and the greatly of the stockholders Thereupon meeting etc. the company, as the May 20, fixed day and was called duly served on duly plaintiff Notice thereof meeting. of meeting forth that notice her protest setting filed she At the meet had been served her. thereof purpose her by her entered attorney protest. appeared she ing 14,988 shares, all of the rep that stock, The tellers reported It the con consolidation. appears that resented voted railroad com into separate by eight solidation was entered of miles millions representing hundreds traversing panies operative at The consolidation became of capital. dollars to the amount common and preferred, new stock, once, with bonds secured dollаrs, million together hundred one were dollars, million many to the amount by mortgage is a matter gen and executed. It issued authorized be the Court known to by information, and public eral of the reports at each term, published us records before public sources and Commission official Corporation Seaboard Air roads forming of consolidation that the accomplished that vast fact, pri an has Line become system duties assumed. The and public involved interests vate FALL TERM, N. O.] B.AII.ROAD.
SPENCEIi V. lier an instead of ap asserting rights promptly by plaintiff, more jurisdiction Court, to the waits peal preventive than power two invoking equitable before years set aside consolidation. It Court to declare invalid is not will that courts to protect be understood refuse if stockholder invaded rights single majority, however relief consoli against refuse large, aggressions however dated Chancellor capital, powerful. originally took cases because of the jurisdiction many inability to maintain suit law his at with his be complainant adversary cause of his number of retainers. The great power large not whether question is without but remedy, whether law has her given other remedy adequate wise than of the extraordinary vested exercise She the Court. demands that the Court char declare the ter Gaston Railroad Company forfeited; and consolidation declared void merger be her; toas that a receiver that an appointed, etc.; be had accounting since the etc. is an receipts company merger, It elementary principle relief is equity jurisprudence and will refused when granted vigilant there has been unreasonable to laches. This delay amounting espe where valuable have been inno cially true acquired by cent This familiar persons. *18 was announced and principle Pittman, enforced this Court Pender v. 84 N. by C., 372, Smith, C. J., saying: “Rut to equity ought promptly asserted and not aby deferred until sale other interests may it if rendering intervene to inequitable, practicable, reverse what has been done and their matters to restore former con dition.” In case it was that held: “That an injunction against out a carrying contract sale made under a in a contained xvill not mortgage when granted relief to which the plaintiff considers himself entitled not sought
128 IN T'PIE SUPREME COURT. RAILROAD.
SPENOEK V. and the until has been made purchaser sale the. have intervened.” for an extended
Mr. Noyes says: “Acquiescence period, inter third parties time the interest of during a stockholder itself constitute laches may prevent vened, of fraud.” a consolidation even ground on the attacking 49. authorities this subject Intercorporate Eel., by are uniform and abundant. As Sir Jolm Rom- Eolls, cannot Master of the “Shareholders sanc by illy, lie in an at least arrange their silence by acquiescing tioning ultra to which be company they ment which is vires if favorable result; it to profitable he long, watching on its if abide it insist but it validity, by themselves then to institute disastrous, proceed prove unfavorable and Patchett, v. Beav., set aside.” Gregory to it ing C.,V. in Rabe Van tersely Fleet, stated The proposition 48: “If he wants protection against 51 N. J. v. Dunlop, Eq., he for with sufficient act must ask prompt an ultra vires without Court do him justice ness to doing enable Ross, v. 55 N. McVickers Y. Sup. to others.” injustice Pa. Kent v. 370; Mining Watts Court, 247; St., Appeal, Co., 78 N. Y., view of case the is not that in
We think at a extraordinary relief demanded. We to the entitled status of the it is preserve how loss practicable see her notice benefit. as she We corporation, suggests, that, notwithstanding its answer says defendant her to have the value of proceed failure of the plaintiff pre-' within method stock ascertained the time now to pay 1901, it willing Acts scribed by chapter 168, His Honor plaintiff, granted her value thereof. com- amend her defendant, assent lie stock ascertained. also value her and have the plaint cor- the books of trial issue that directs upon *19 NALL TEEM, O.] Railkoad. etc. think that the order of poration his produced, We Honor She will fully protects plaintiff. Superior term of days the next Court thirty her amend to have value of complaint proceed her stock therefor. judgment ascertained rendered Upon a full and careful consideration the reсord, the agreement of counsel find no authorities, we error judg- ment of Honor. itLet be so certified. his
No Error. Douglas, J., I wished to dissenting. views express my more but fully upon which I case, circumstances regret confine me to few lines. I do how the see emi- not nent 'of domain, powers one can sovereign State, in favor of invoked railroad consolidation where not a foot of additional road is built and nothing is added public convenience. Private can be property taken only for pub- lic use. use can make of private What public of a from its*road-bed and other material aside which are to the ? property already the public devoted use Is it not establishing dangerous the con- principle permit solidation the consent of their railroads minority without private dangerous but only rights, stockholders — toso equally economic railroad great principle competi- tion which interested ? so public vitally
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